The court clarifies that electronic evidence can be admitted during trial, emphasizing the necessity for ensuring genuineness without assuming it requires reverting to an investigative process.

O R D E R

Aggrieved by the order of Sessions Court, Kasaragod dismissing a petition filed by the Public Prosecutor under Section 311 Cr.P.C in S.C.No.346/2016 to summon an additional witness in order to bring on record electronic evidence of a device and chip containing the videograph of the alleged incident, the de facto complainant has filed this petition under Section 482 Cr.P.C.

2. The second respondent/accused faces criminal prosecution in S.C No.346/2016 for the commission of offences punishable under Section 341, 323 and 354 of I.P.C and Section 3(i)(xi) of SC/ST (POA) Act. During the course of evidence in the said case, the learned counsel for the second respondent/accused put a suggestive question to the victim/petitioner as to whether the videograph of the event recorded by her sister’s daughter has been suppressed fearing that it would disclose the actual incident. It is for the above reason that the learned Public Prosecutor filed Crl.M.P No.521/2020 before the Sessions Court under Section 311 Cr.P.C to summon the victim’s sister’s daughter and to produce the device and chip containing the videograph of the incident, in order to bring the aforesaid evidence on record. The accused/second respondent opposed the above application contending that there was every chance of tampering and morphing the above videograph and hence the application filed by the learned Public Prosecutor at this belated stage, cannot be allowed.

3. The learned Sessions Judge, by the order dated 24.02.2020, declined to allow the request of the prosecution in the above regard stating the reason that the device and videos sought to be produced cannot be admitted in evidence unless its genuineness is checked by an expert. The learned Sessions Judge further observed that the contention of the learned Public Prosecutor that the aforesaid device and chips could be sent for analysis by an expert, cannot be accepted since the above course could be resorted to only by way of further investigation. Another reason stated by the learned Sessions Judge in the impugned order for disallowing the request of the prosecution is that the move in the above regard would cause undue delay in completing the trial of the case. 4. Heard the learned counsel for the petitioner, the learned counsel for the second respondent/accused and the learned Public Prosecutor representing the State of Kerala.

5. As already stated above, a suggestive question put by the learned counsel for the accused/second respondent as to the availability of a videograph about the whole incident with the daughter of the victim’s sister, and the deliberate act of the victim and the prosecution suppressing the above videograph to avoid revelation of the actual event, has prompted the prosecution to move the application under Section 311 Cr.P.C to summon the above person in possession of the above said videograph with the device and chip containing the video recording of the incident involved in this case. It is of no doubt that if there existed such a videograph which would display the incident involved in this case, and that its genuineness could be ensured, then the evidence sought to be brought on record in the above regard would help the trial court a long way in arriving at a conclusion as to whether the offence alleged against the accused is established or not. When viewed in the above perspective, the prayer of the prosecution comes under the second part of Cr.P.C, which requires the Court to summon and examine such witnesses if the evidence sought to be adduced in the above regard appears to be essential for the just decision of the case.

6. It is true that Section 311 Cr.P.C cannot be invoked to permit a party to adduce evidence to fill up the lacuna of